HeatherW

Being Sued by JDB in Nevada

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Hi All,

 

I'm so grateful for this resource! It's been so helpful already. Here goes:

 

1. Who is the named plaintiff in the suit?

"Junk Debt Buyer"

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Miles, Bauer, Bergstrom & Winters


3. How much are you being sued for?

In excess of $10,000

4. Who is the original creditor? (if not the Plaintiff)

Chase


5. How do you know you are being sued? (You were served, right?)
I was served


6. How were you served? (Mail, In person, Notice on door)
In person


7. Was the service legal as required by your state?
Yes


8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They sent a letter (maybe two letters) saying they were attempting to collect a debt, including the total amount owed and a dollar amount they would settle the account for.

9. What state and county do you live in?

Nevada, Washoe County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

July 16, 2007

11. What is the SOL on the debt? To find out:
SOL on written contract in NV is now 6 years (the link provided by this forum states 4 years)

SOL on open account is 4 years
Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Complaint served. Answer filed on time.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

 

I responded to their Complaint. I did not receive an interrogatory.

 

They are claiming (I have not included the full text of the Complaint):

"GENERAL ALLEGATIONS

Plaintiff is informed and believes and, based thereon, alleges that Defendant, MICHAEL BAUMANN a/k/a MICHAEL EDWARD BAUMANN (herinafter referred to as "Defendant") is now a resident of the County of Washoe, State of Nevada."

 

(Baumann is one of the firm's attorneys. They did get the Defendant properly identified on the Heading of the Complaint, and in every other instance.)

 

"Par. 3.  Def. entered into a Credit Card Agreement in favor of HERITAGE FIRST USA (Chase) as Creditor Lender under acct. no XXXX-XXXX-XXXX-0000.

 

Par. 5.  On or about Aug. 16, 2007, Defendant defaulted under the terms of the Contract by failing to make the minimum monthly payment when and as due.

 

FIRST CAUSE OF ACTION

BREACH OF WRITTEN CONTRACT

 

Par. 11.  Defendant breached the terms of the Contract and failed to perform all conditions, covenants, and promises required to be performed by Def. in accordance with the terms and conditions therof; most specifically, Def. has failed to make payments when and as due.

 

SECOND CAUSE OF ACTION

ACCOUNT STATED

 

Par. 17.  There exists an account stated in writing by and between Plaintiff and Defendant and on such account there are obligations due to Plaintiff from Defendant.

 

Par. 18.  Plaintiff is due and owing in excess of $10,000."

 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

They sent no evidence, affidavits, or statements. Nothing.

 

My Answer: RedactedAnswer.doc

 

I have not received anything from Plaintifff. I have checked the court website and there is nothing new listed there, no hearing date or anything. The last thing entered is the receipt of my Answer.

 

What is my next step?

Please let me know if I should post the Complaint in its entirety, and if there is any information included in this post that I should edit for privacy reasons.

 

Thanks in advance for your help!

Heather

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Welcome to the board. Others that have been down this trail will be along soon to give more advice. Make sure that you answer the summons in the time allowed to avoid a default judgment. Sounds like your either close to SOL or just past it. Also, check to see what the OC will try to use as an SOL. Some banks use Delaware which has a three year SOL. Check real close to see who they might use, as you might be able to use another state if your not quite there in NV.

If you haven't already done so, get on here and read, read, and read some more. The more studying and research you do will help you in the end. Start a file on any and all JDB's and law suits so that you have some kind of order. Get a recording device and make sure you record all calls if you get any and if it's legal for you to do so in NV. Read up on how to beat Midland from start to finish and LVN and others. As they are all about the same, just the name changes. You might read up on Linda7's thread about arbitration, as you might use that as an option too. In some cases it will run them off. But, if your fighting the OC (Chase) it will be harder, and they may not run off for that amount, but, it's an option to consider.

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It will be tough because of the contract thing maybe counterclaim for violations the SOL argument because do they really have the written agreement. It is a tough gambit but it can be done

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Nevada statutes:

 

NRS 97A.060  “Credit card account” defined.  “Credit card account” means an open line of credit offered by an issuer to a cardholder which is accessed by obtaining money, property, goods, services or anything of value by the use of a credit card.

 

NRS 11.190  Periods of limitation.

 

1.  Within 6 years:

      (a) An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or the renewal thereof.

      (b) An action upon a contract, obligation or liability founded upon an instrument in writing, except those mentioned in the preceding sections of this chapter.

 

2.  Within 4 years:

      (a) An action on an open account for goods, wares and merchandise sold and delivered.

      (b) An action for any article charged on an account in a store.

      © An action upon a contract, obligation or liability not founded upon an instrument in writing.

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Thanks for the input so far! I have lots of questions and there are things that I don't fully understand, so most of my questions are going to seem pretty dumb.

 

I have been reading and re-reading a lot of the content in this forum. I've also read my local court rules. I am going to have to re-read the court rules because I don't have a good grasp at all. I really need to talk to someone who can explain them in plain english. As many others in my situation have said, I'm really in over my head and feeling overwhelmed! Thanks for your patience!

 

Also, check to see what the OC will try to use as an SOL.

Why do I need to do this, since I am dealing with a JDB?

 

 

Start a file on any and all JDB's and law suits so that you have some kind of order.

Are you referring to all JDBs or just the one that is sueing me? And where/how do I find info on these lawsuits?

 

 

It will be tough because of the contract thing maybe counterclaim for violations the SOL argument because do they really have the written agreement. It is a tough gambit but it can be done

I'm open to doing this, but I think it's well above my abilities unless I get a lot of help with it. I feel overwhelmed as it is just dealing with answering the complaint and now trying to figure out what to do next.

 

 

Nevada statutes:

 

NRS 97A.060  “Credit card account” defined.  “Credit card account” means an open line of credit offered by an issuer to a cardholder which is accessed by obtaining money, property, goods, services or anything of value by the use of a credit card.

 

NRS 11.190  Periods of limitation.

 

1.  Within 6 years:

      (a) An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or the renewal thereof.

      (b) An action upon a contract, obligation or liability founded upon an instrument in writing, except those mentioned in the preceding sections of this chapter.

 

2.  Within 4 years:

      (a) An action on an open account for goods, wares and merchandise sold and delivered.

      (b) An action for any article charged on an account in a store.

      © An action upon a contract, obligation or liability not founded upon an instrument in writing.

BV80 - I've been reading and reading about the SOL and your post is helpful, but forgive me, I'm not completely clear on what exactly you're trying to point out. I can see that you've italicized 1b. and 2b and circled 2c.

 

If the JDB cannot produce a written, signed contract, then the four-year SOL applies? Is that at least partially correct?

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That is correct.  No signed contract, no 6 year SOL. I know my heritage chase was a use the card, and that is an agreement, there was no signed contract.  I think they wrote that in your complaint becasue they knew they were past the SOL, and thought that you might not challenge it.

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Another question regarding TomnTex's post:

 

Some banks use Delaware which has a three year SOL. Check real close to see who they might use, as you might be able to use another state if your not quite there in NV.

I don't understand how to go about selecting a particular state's SOL, or how the Plaintiff could use a different state's SOL.

Also, isn't there wording in my original credit card agreement pertaining to which state's laws can be used, and also any wording regarding arbitration? How do I find this if I don't have the credit card agreement?

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When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of a citizen thereof who has held the cause of action from the time it accrued.

10
Nev.Rev.Stat. § 11.020.

 

This is what you have to argue. The jdb (you need to tell us which one) "steps into the shoes" of the original creditor, Chase, who is in DE and has a 3 year SOL. The red part is what you need to stress. Even if the plaintiff is in Nevada, they did not hold the cause of action when it "accrued" (happened) You defaulted when the OC held the account, that is when the injury occurred.

 

Besides, where do they get off waiting six years to sue you? So the interest could pile up at a rate they can't get anywhere else is why. This is another defense, called failure to mitigate damages. They could have taken action to lessen their injury, but instead they just made it worse. Intentionally so, too, for profit.

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Never heard of this one, but it does appear that they buy accounts occasionally. They are in Las Vagas. Try the motion to dismiss based upon a time barred debt.

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BV80 - I've been reading and reading about the SOL and your post is helpful, but forgive me, I'm not completely clear on what exactly you're trying to point out. I can see that you've italicized 1b. and 2b and circled 2c.

 

If the JDB cannot produce a written, signed contract, then the four-year SOL applies? Is that at least partially correct?

 

 

Whenever "b" and "c" are enclosed in parentheses, they don't appear that way.  The "b" will appear as a smiley face, and the "c" will be circled.  I italicized the "b" to prevent a smiley face from appearing.    (B)     vs.   (b)      I just forgot about the "c".

 

The reason I copied your state statutes is to show your state's definition of "credit card account".   It states that a credit card account is an open line of credit.  It's possible that you could argue that the definition fits the 4 year SOL for an action on an "open account".  It's worth a try.  

 

A signed contract is not necessary unless your state laws make that specification for cc accounts. 

 

 

This is what you have to argue. The jdb (you need to tell us which one) "steps into the shoes" of the original creditor, Chase, who is in DE and has a 3 year SOL. The red part is what you need to stress. Even if the plaintiff is in Nevada, they did not hold the cause of action when it "accrued" (happened) You defaulted when the OC held the account, that is when the injury occurred.

 

 

Unfortunately, I'm not sure NV's borrowing statute will work in this case.   The only case law I could find regarding the statute was a 9th Circuit case in which the court referenced a NV Supreme Court ruling about the location of a cause of action.  In Alberding v. Brunzell, the 9th Circuit quoted the following:

 

No recent Nevada decision has considered this issue; but, in Lewis v. Hyams, 26 Nev. 68, 63 P. 126 (1900), and Wing v. Wiltsee, 47 Neb. 350, 223 P. 334 (1924), the Nevada Supreme Court established that the cause of action on an obligation accrues in the place where the defendant resided when the obligation came due. The reasoning behind the rule was that a cause of action arises in the place where the defendant can be sued, and at the time those cases were decided, personal jurisdiction could only be obtained in the state of residence. Lewis, 26 Nev. at 81, 63 P. at 127.

 

If a court goes by the above, the obligation would have come due in NV, and the NV SOL would apply.   The poster could go ahead and try to use the borrowing statute, but there would be no supporting case law.

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Heather,

 

I successfully argued a shorter statute of limitations for a credit card by arguing the open account via written contract.   It was in Arkansas.   It's a pretty technical argument that I made with a little set up in the discovery stage to set them up with some answers that I knew would help me with my argument. 

 

Also, I argued it as a motion for summary judgement and not a motion to dismiss as I did not want to tip my hand with a motion to dismiss and I needed some of their discovery responses that I obviously did not have at the time.  

 

Just FYI, it can be done. 

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UPDATE-APRIL 27, 2013

 

I received from the court a notice of "Assignment to Arbitration." I have until Wednesday, May 1 to reply with my choice of two arbitrators from the list of five. I can also stipulate that I choose private arbitration, and have a thread about all that here: http://www.creditinfocenter.com/community/topic/320040-assignment-to-arbitration-in-nv/.

 

However, after re-reading all the posts here in this thread, and being in a little clearer state of mind, I do think I want to file a Motion for Judgment on the Pleadings.

 

I need a little direction on what I need to put to put in this motion. Is this where I argue the SOL issue?

 

Also, to cover my bases with the pending arbitration, should I concurrently file my stipulation for private arbitration in case my Motion for Judgment is denied?

 


Nevada Rules of Civil Procedure


     12.  © Motion for Judgment on the Pleadings.  After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

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